Why Make a Will?

This article is one of a series, and while it can be read on its own, is designed to be read along with the articles “What Should You Consider When Making A Will?” and “What Happens If You Don’t Make A Will?” 

Introduction

A will is a written document that lets you decide what happens to your property and assets in the event of your death. A will can also set out who should take care of young children. Importantly, it also stipulates who will manage your affairs after your death. It can be a difficult topic to think about, or discuss, but it is crucial, especially if you have young children. 

If you die without a will, you won’t have a say in who receives your property and other assets (including your pets). You won’t have a say in who manages your estate. If you have children, you miss out on the opportunity to nominate a trusted, responsible guardian for them. Not having a will can make it more difficult for your loved ones after you pass away.

Wills aren’t just for the sick or elderly - in fact, every adult should consider making one. 

Who Gets What?

You are the person best to decide how you want to divide your money and assets. Remember, nobody knows your wishes and your family as well as you do. 

Firstly, you should think about how you would like to divide your money and assets. You should have a good idea about what you own, either in your sole name or jointly with your spouse or civil partner. You should think about what you would be leaving behind and who you want it to go to.

There are legal protections for your spouse, or civil partner, and your children, but most people provide for their family as fairly as possible in their will. Partners outside marriage are not protected to the same extent. 

Your spouse, or civil partner, has a legal right to a share in your estate: one third if you have children and one half if you don’t have children. If you are separated or divorced, the Court should have dealt with this. 

When it comes to your children, you should consider their ages; their education; any financial support you previously provided; what they now own; and their line of work. 

In some cases, the older and wealthier they are, the less help they may need. Your children are not entitled to a fixed share like a spouse or civil partner, but they can apply to Court if not properly provided for by what the law describes as a “just and prudent parent.”

Many wills made by married couples leave everything to each other with a “gift over” clause/option, which states that if the other spouse also dies, all property goes to the children. If the children are very young, the “gift over” clause/option ensures everything goes to trustees to mind the assets for young children.

Who Handles This?

The person who takes care of your affairs in the event of your death is called your Executor or Executrix. This can be a very demanding and emotional role. You can appoint more than one. You should let them know beforehand that you will be assigning them this role, and where they can find your will, should anything happen to you. 

If you are leaving property to young children, as stated above, you might think about including a trust for those children, and appointing Trustees to manage any money or assets left for them while they are under 18, or even slightly older. 

A trust is where people called Trustees hold the assets “in trust” for the benefit of the children until the children reach 18, which is when they can own the property.  You might also think about appointing Guardians, who would take over your role in raising the children until they turn 18.

In the event of one parent’s death, the surviving parent is automatically assigned as guardian, but if both parents were to die –in a car crash for example –  someone has to be appointed to mind them. This is a very difficult, but important decision to make, and should be considered carefully.

Summary

People, especially those with young children, should think about making a will to provide for their loved ones in the event of their death. They should think about dividing their assets fairly, taking their spouse’s rights into account, picking the right person to manage their affairs on death, if a trust is to be created, and who is to mind their young children. 

Padraic Courtney is a Solicitor and Secretary to the Probate, Administration & Trusts Committee of the Law Society of Ireland. 

Disclaimer: Please note that this article is for general information purposes only and does not purport to be legal advice. While every care has been taken in its production, no legal responsibility or liability is accepted warranted or implied by the author, publishers or the Law Society of Ireland in respect of any errors, omissions or misstatement. Readers are advised to seek independent professional legal advice before acting on anything in this article.